Federal Courts: The Dual-Law System

Course Information

Registration Information

Meeting Times

Day Time Location
MON, TUE, WED, THU 1:15 - 2:05 pm TNH 3.129

Evaluation Method

Type Date Time Location
Final December 18, 2014 8:30 am A-Z in 3.127


FEDERAL COURTS: DUAL-LAW SYSTEM WEINBERG FALL 2014 FOUR HOURS This Fall course in the Dual-Law System can be taken whether or not the student also intends to take the Spring course in the Dual-Court system, and that course can be taken whether or not the student has taken this course. They are independent offerings. Together, however, they constitute the classic course in Federal Courts, a big-picture course, systemic and structural rather than procedural. The aim of both segments is to open to students a sophisticated and penetrating understanding of the peculiarities, pathologies, and metaphysics of the American two-law two-court system, and of the more controversial lawmaking, adjudicatory, and governmental powers of the judiciary. These studies are generally viewed as key to a first-class practice. The structural understandings they explore, widely shared among American lawyers, are understandings essential to well-informed litigation, and for this very reason essential to well-informed counseling. They can undergird at a superior level the systemic understandings of American lawyers throughout their professional lives. Demonstrated capability in the study of Federal Courts is among the strongest supports of students seeking judicial clerkships, state as well as federal, and is helpful also to applicants for employment in government and in firms with national practices. More immediately, these studies lay solid ground for the major federal-law courses which prudence suggests students choose if preparing for first-class practice. However, no prior knowledge of federal substantive law is assumed. Rather, the cases themselves provide all the substantive knowledge needed to analyze them. Indeed, a side benefit of these readings is the introduction they provide to a variety of areas of substantive federal law. Since the course's beginnings as Henry Hart's six hour two-semester course required in the second year, the field has grown much bigger and more complex. But in today's crowded curriculum Federal Courts has been more typically taught in a single semester. This compression of an expanding field of vital national importance poses a problem toward which the present pair of offerings is intended to offer one solution. It remains necessary that the syllabuses of both these offerings be rigorously selective, providing depth, where warranted, in exchange for inessential or duplicative material. In line with its originators vision, this course will consider selected systemic problems viewed in their contexts of political controversy and inevitable change. In the Fall course on the Dual-Law System, we will consider such problem areas as controversial judicial lawmaking; the legitimacy of federal common law; judicially-created causes of action to enforce statutes, or to enforce the Constitution, or to vindicate identified national policy; judge-made new federal defenses; judicial methods in cases of actual conflict between federal and state laws; incorporation of state law into federal law; cases for which there is no law; the obligation of state courts to adjudicate federal claims; federal law in state courts; preemption by federal law of conflicting state law; federal preemption of fields of law even in the absence of conflict; state law in federal courts; the law applied upon federal transfer of state-law cases; the administrability of law in complex litigation, and so on. [The Spring course in the Dual-Court System will cover such subjects as the jurisdiction of the Supreme Court; developments in judicial review; Supreme Court review of state judgments; the Article III jurisdiction of the District Courts; choice among heads of federal jurisdiction; judicial power over government in habeas corpus, or in damages suits at law, or in injunction suits ("government by decree"); judicial equitable powers, federal injunctions against state suit, problems of removal, abstention, and stay, intersystemic res judicata, and so on.] The course readings are Supreme Court cases, classic and current, intrinsically worth one's time. By special arrangement with West Pub. Co. and the Law School Foundation, the professor's early casebook and last supplement have been made available to students in these courses, new from the publisher's latest print run. There is no charge as such, but there is a required minimum contribution of $35 payable to the Law School Foundation to help compensate the Foundation for purchasing the supply. The course is fully updated; late cases are assigned by citation, and are easily accessed on the internet. The exam's coverage will be thorough and deep, but at the time of the exam the student will have some choice over the particular questions to answer, and so will be able to approach the exam from an improved position of personal strength. Within the following parameters, the course is freely open to first comers. The course is closed to those who have taken Federal Courts previously. By design, this special course in the Dual-Law System is expected to be a small one, and a small classroom has been requested for it. Also, because the course presumes a basic grounding in American tort law, American constitutional law, and American civil procedure, this Section is closed to any student who has not completed these elements of a standard first year of American legal education. This course may not be elected in the first year. Four hours.

Textbooks ( * denotes required )

Federal Courts (by private arrangement) *
last supplement (by private arrangement) *
articles as become relevant to specific course topics (optional)


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